Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 1 of 46 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

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1 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 1 of 46 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT ) ) JOHN W. SHEPHERD, JR., ) ) Plaintiff, ) Civil No.: 3:11-cv (AWT) ) v. ) ) JOHN MCHUGH, SECRETARY OF THE ARMY, ) ) November 10, 2011 Defendant. ) ) ) MEMORANDUM OF LAW IN SUPPORT OF CROSS MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO DEFENDANT S MOTION FOR SUMMARY JUDGMENT Rebecca Kraus, Law Student Intern Dana Montalto, Law Student Intern Michael Wishnie, ct27221 Fiona Doherty, ct28623 Veterans Legal Services Clinic Jerome N. Frank Legal Services Organization Yale Law School P.O. Box New Haven, CT Counsel for Plaintiff Oral argument is respectfully requested.

2 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 2 of 46 TABLE OF CONTENTS TABLE OF AUTHORITIES...III PRELIMINARY STATEMENT... 1 FACTS AND PROCEEDINGS I. MR. SHEPHERD VOLUNTARILY ENLISTS IN THE MILITARY AND SERVES BRAVELY IN VIETNAM... 2 II. MR. SHEPHERD RECEIVES A DISCHARGE UPGRADE BUT IS DENIED BENEFITS... 6 III. MR. SHEPHERD IS DIAGNOSED WITH PTSD CAUSED BY HIS SERVICE IN VIETNAM... 8 IV. THE ARMY REFUSES TO CREDIT MR. SHEPHERD'S SERVICE, SACRIFICE, AND DIAGNOSIS... 9 ARGUMENT I. STANDARD OF REVIEW II. THE ABCMR S APRIL 24, 2006 DECISION WAS ARBITRARY AND CAPRICIOUS, AND MR. SHEPHERD S APPLICATION SHOULD BE GRANTED ON GROUNDS OF JUSTICE AND EQUITY A. The Record Shows That Mr. Shepherd s Application Should Be Granted B. The Court May Consider Evidence Outside the Record That Confirms Mr. Shepherd s Application Should Be Granted III. IN THE ALTERNATIVE, THE ABCMR S APRIL 24, 2006 DECISION WAS ARBITRARY AND CAPRICIOUS, AND THE CASE SHOULD BE REMANDED A. The ABCMR Erred in Concluding That Mr. Shepherd s Claim Was Not Within the Statute of Limitations B. In the Alternative, the ABCMR Should Have Waived the Three-Year Statute of Limitations in the Interest of Justice C. The ABCMR Decision Did Not Review the Full Merits of Mr. Shepherd s Case D. The ABCMR Decision Failed to Consider Arguments Fairly Raised IV. THE ABCMR S JUNE 26, 2007 DECISION WAS ARBITRARY AND CAPRICIOUS BECAUSE IT FAILED TO RECONSIDER WAIVING THE STATUTE OF LIMITATIONS IN LIGHT OF NEW EVIDENCE AND IGNORED ARGUMENTS RAISED BY MR. SHEPHERD A. The Board s 2007 Decision Failed To Consider That Mr. Shepherd s Initial Application Was Timely B. The Board Failed to Reconsider the Waiver of the Statute of Limitations in Light of New Evidence C. If the ABCMR Did Address the Merits of the New Evidence in 2007, Its Decision Was Arbitrary and Capricious CONCLUSION ii

3 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 3 of 46 TABLE OF AUTHORITIES CASES Allen v. Card, 799 F. Supp. 158 (D.D.C. 1992)...27, 28, 29, 31 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)...12 Black v. United States, 24 Cl. Ct. 465 (1991)...19, 20 Blassingame v. Sec y of the Navy, 866 F.2d 556 (2d Cir )...11, 18, 26 Boruski v. U.S. Gov t, 493 F.2d 301 (2d Cir )...11, 36 Brown v. United States, 184 Ct. Cl. 501 (1968)...19, 20 Caddington v. United States, 178 F. Supp. 604 (Ct. Cl. 1959)...33 Calloway v. Brownlee, 366 F. Supp. 2d 43, 55 (D.D.C. 2005)...33 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)...18 De Cicco v. United States, 677 F.2d 66 (Ct. Cl. 1982)...25 Dent v. Holder, 627 F.3d 365 (9th Cir. 2010)...20, 21, 22, 25 Dickson v. Sec y of Defense, 68 F.3d 1396 (D.C. Cir. 1995)...12, 30, 36 Erickson v. Pardus, 551 U.S. 89 (2007)...33 Evans v. Marsh, 835 F.2d 609 (5th Cir. 1988)...12 iii

4 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 4 of 46 Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985)...12 Frizelle v. Slater, 111 F.3d 172 (D.C. Cir. 1997)...33, 36, 37 Guerrero v. Stone, 970 F.2d 626 (9th Cir. 1992)...12 Hankerson v. Harris, 636 F.2d 893 (2d Cir )...19 Hoppock v. United States, 176 Ct.Cl (Ct. Cl. 1966)...22 In re Dana Corp., 574 F.3d 129 (2d Cir )...12 Latifi v. Gonzales, 430 F.3d 103 (2d Cir ) (per curiam)...25 McFarlane v. Sec y of Air Force, 867 F. Supp. 405 (E.D. Va. 1994)...28 Motor Vehicle Mfrs. Ass n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)...11, 13 Mullen v. United States ( Mullen I ), 17 Cl. Ct. 578 (Cl. Ct. 1989)...31 Mullen v. United States ( Mullen II ), 19 Cl. Ct. 550 (Cl. Ct. 1990)... passim Nat'l Nutritional Foods Ass n v. Weinberger, 512 F.2d 688 (2d Cir )...11 National Audubon Society v. Hoffman, 132 F.3d 7 (2d Cir )...18 Public Citizen, Inc. v. FAA, 988 F.2d 186 (D.C. Cir. 1993)...13 Sierra Club v. U.S. Army Corps of Engineers, 772 F.2d 1043 (2d Cir )...18, 23, 25 Walls v. United States, 582 F.3d 1358 (Fed. Cir. 2009)...20 iv

5 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 5 of 46 STATUTES 5 U.S.C U.S.C , U.S.C passim 10 U.S.C , U.S.C U.S.C OTHER AUTHORITIES 32 C.F.R , C.F.R passim 38 C.F.R Am. Psychiatric Ass n, Diagnostic and Statistical Manual (2d ed. 1968)...16 Am. Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders (3d ed. 1980)...5 Am. Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000)...16 David D. Lee, Sergeant York: An American Hero (2002)...15 E.B. Potter, Nimitz (1988)...15 Timothy D. Johnson, Winfield Scott: The Quest for Military Glory (1998)...15 v

6 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 6 of 46 PRELIMINARY STATEMENT John Shepherd served his country in Vietnam, where the U.S. Army recognized his bravery in combat by awarding him a Bronze Star with Valor Device the Army s fourth highest combat award. Yet the very same combat heroism that brought Mr. Shepherd acclaim left him permanently wounded by Post-Traumatic Stress Disorder ( PTSD ). In 1969, while still in Vietnam, he manifested the direct effects of this trauma: he became visibly confused, was unable to resume the fight, and displayed other strange behaviors. The Army did not diagnose or treat his psychological injuries. Rather than help to heal him, the Army expelled Mr. Shepherd with an Other Than Honorable discharge. In this action, Mr. Shepherd seeks judicial review of the 2006 and 2007 decisions of the Army Board for Correction of Military Records ( ABCMR ) denying him a discharge upgrade to General (Under Honorable Conditions), and asks this Court to correct the forty-year injustice of his Other than Honorable discharge For decades, Mr. Shepherd struggled alone to cope with his combat wounds, growing estranged from his family, surviving on sporadic employment, and sleeping in his truck during periods of homelessness. Finally, in 2003, doctors at the U.S. Department of Veterans Affairs ( VA ) diagnosed Mr. Shepherd with PTSD, rated him at 100% disabled, and concluded that the PTSD was caused by his combat experiences in Vietnam. Because of his discharge status, however, Mr. Shepherd is ineligible for the VA disability benefits he has otherwise earned. Since discovering his PTSD in 2003, Mr. Shepherd has sought to upgrade his discharge administratively in order to remove the shame and dishonor it conveys, and in the hope that he might receive disability benefits for his service-connected wounds. In 2006, ABCMR denied Mr. Shepherd s application to upgrade his discharge status. The ABCMR s 2006 decision ignores important evidence, fails to connect the facts and conclusions, strays from established precedent, 1

7 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 7 of 46 and bases its determination on vague and ambiguous grounds. The ABCMR also denied Mr. Shepherd s 2007 request for reconsideration. This decision likewise fails to consider all the evidence, veers from precedent, and lacks clarity. In its motion, the government is dismissive of Mr. Shepherd s sacrifice, emphasizing his short tenure in the Army (Defendant s Memorandum of Law (hereafter Govt. Br. ) at 1), and that he fought in Vietnam for less than two full months of combat duty before his injury. (Id. at 4.) The government willfully ignores the intensity of combat Mr. Shepherd saw, the sacrifice that earned him his Bronze Star with Valor Device, and the severity of his service-connected injury. Mr. Shepherd has suffered from the wounds of combat long enough; he deserves the recognition of an honorable discharge. He respectfully requests that this Court deny the government s motion for summary judgment, and grant his cross motion for summary judgment, directing the Secretary of the Army to upgrade his discharge to General (Under Honorable Conditions), or in the alternative, to vacate and remand for further proceedings before the ABCMR. FACTS AND PROCEEDINGS I. Mr. Shepherd Voluntarily Enlists in the Military and Serves Bravely in Vietnam Mr. Shepherd was born and raised in Mount Vernon, Ohio. (Administrative Record, ECF No. 16 (hereafter AR ) 175, 183.) As a teenager, he moved with his parents and three siblings first to Paoli, Pennsylvania and then to Westport, Connecticut. (Id.) In 1968, on the day after his twenty-first birthday, Mr. Shepherd left his job as an appliance serviceman at Sears, Roebuck and enlisted in the Army. (AR 84, 201.) Less than one month later, Mr. Shepherd began Basic Training at Fort Gordon, Georgia. (AR 174.) Mr. Shepherd received a two-week leave to visit his family, and then was absent without leave (AWOL) for an additional three weeks. (AR 87.) After voluntarily returning to 2

8 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 8 of 46 Fort Gordon, he accepted responsibility for his actions and received a court-martial. (AR 167.) The Army suspended Mr. Shepherd s five-month sentence of hard labor, and he continued on to complete Advanced Infantry Training. (AR 158, 168.) Mr. Shepherd s Commanding Officer at Fort Gordon, Colonel Robert F. Radcliffe (ret.), then a Captain, described him shortly thereafter as an outstanding soldier. (AR 115.) In November 1968, Mr. Shepherd declined his option to enter the airborne division. (AR 158.) Of the soldiers in Mr. Shepherd s training class all of whom were volunteers for the airborne division [n]inety percent or more... were assigned to infantry units as individual replacements in Vietnam, like Mr. Shepherd. (Affidavit of Robert Radcliffe dated October 29, 2011 (hereafter R. Radcliffe Aff. ) 4.) Around December 20, 1968, Mr. Shepherd was ordered to deploy to Vietnam. (AR 164.) Having never before traveled abroad, Mr. Shepherd arrived in Vietnam on or about January 22, (AR 155, 174.) First, he trained at Reliable Academy at Dong Tam Base in the Mekong Delta. (AR 152.) Records indicate that Mr. Shepherd was absent from classes on January 28, violating Article 89 of the Uniform Code of Military Justice (UCMJ). (AR 19, 151.) He was given the relatively light, non-judicial punishment of forfeiting $25 pay. (AR 152.) Mr. Shepherd was then attached to Company C of the 2 nd Battalion of the 39 th Infantry Regiment of the 9 th Infantry Division. (AR 138, 145.) He was stationed at Fire Support Base Dirk, renamed Fire Support Base Schroeder in March 1969 after the 2/39th Battalion's Commander, Lieutenant-Colonel Donald B. Schroeder, was killed. (Affidavit of John Shepherd dated November 8, 2011 (hereafter J. Shepherd Aff. ) 8.) Mr. Shepherd experienced combat almost daily, either heading out on search and destroy patrols or helping defend the base from attack from rockets and mortars. (AR 13; J. Shepherd Aff. 8, 11.) He constantly thought he was going to expire from fright. (Affidavit of Rebecca Kraus dated November 10,

9 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 9 of 46 (hereafter Kraus Aff. ), Ex. A, VA Stress Disorder Examination at 1.) He saw fellow soldiers, including close friends, killed or wounded during this period of intense fighting. (AR 13; Kraus Aff., Ex. A, VA Stress Disorder Examination at 1; J. Shepherd Aff. 9.) For satisfactorily performing in combat, Mr. Shepherd earned the Combat Infantryman Badge. (AR 147.) Two experiences then fundamentally changed Mr. Shepherd. First, his Company went out on a mission around February 1969, traveling by helicopter. As they landed, the enemy opened fire. (J. Shepherd Aff. 11.) Mr. Shepherd jumped out, grabbing his M16 and a grenade, and he headed straight into the shooting. (Id.) He surged forward, adrenaline rushing through his body. (Id.) He ran into the bunker, threw a grenade, and leapt back out. (Id.) While in midair, he felt the concussive force of the explosion behind him. (Id.) Regaining his footing, Mr. Shepherd saw that his grenade had killed all the enemy soldiers except one, who emerged covered in blood. (Id.) As Mr. Shepherd aimed his gun at this last enemy, someone yelled not to shoot. (Id.) Mr. Shepherd put down his weapon, and other members of his unit rushed forward to take the enemy captive. (Id.) Afterward, the unit dug through the top of the bunker, and Mr. Shepherd saw the mangled bodies of the people he had killed. (J. Shepherd Aff. 11; Kraus Aff., Ex. A, VA Stress Disorder Examination at 1.) He remembers thinking afterward about his mother, and then about how the men he killed had mothers, too. (J. Shepherd Aff. 12.) For Mr. Shepherd s heroic actions on this day risking his own life and saving the lives of his fellow soldiers the Army awarded him a Bronze Star with Valor Device. (AR 119; J. Shepherd Aff. 13.) Second, shortly after the fight at the bunker, Mr. Shepherd and his unit were on a sweep. (J. Shepherd Aff. 15.) As he was wading through the jungle, directly behind his Commanding Officer the same lieutenant who had nominated him for the Bronze Star the officer reached back to help Mr. Shepherd climb the slick side of a canal. (Id; AR 13.) At that moment, with 4

10 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 10 of 46 their hands clasped, the officer was hit in the chest by five rounds from a sniper. (Id.) Mr. Shepherd saw the bullets tear through his body. (Id.) The lieutenant collapsed into Mr. Shepherd s arms. (Id.) People around them started shouting for a medic, but Mr. Shepherd knew it was no use. (J. Shepherd Aff. 15.) He recalls, I saw his spirit leave his body. (Id.) The experience of these two harrowing events debilitated Mr. Shepherd. They mark the beginning of his intense fear and anxiety, of nightmares and flashbacks. (AR 13; J. Shepherd Aff ) He began acting differently. An officer found him wandering around the base in a confused state; he had trouble getting along with the newly-assigned Commanding Officer; and then he refused that officer s order to secure his gear and head into the field. (AR 145; J. Shepherd Aff ) He was mentally incapacitated unable to experience combat again. (AR 13.) In 1969, when Mr. Shepherd suffered his combat wounds, medicine had not yet defined and classified PTSD as a mental health disorder. Indeed, PTSD was not included in the Diagnostic and Statistical Manual of Mental Disorders ( DSM ) until Am. Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders , at (3d ed. 1980). In 1969, the Army did not understand Mr. Shepherd s behavior or attempt to assist him. Col. Radcliffe, Mr. Shepherd s Commanding Officer at Ft. Gordon, remembers that he himself was not trained to recognize PTSD and to appreciate the debilitating effect it could have on a soldier. (Radcliffe Aff. 8.) Back then, he would much more likely associate refusal to go to the field with cowardice than to a mental health situation. (Id.) The Army charged Mr. Shepherd with violating Article 90 of the UCMJ. (AR 145.) There was no time to convene a regular court-martial, because Mr. Shepherd s Company was about to be withdrawn from Vietnam. (AR ) Mr. Shepherd waived his right to a regular 5

11 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 11 of 46 court-martial and appeared instead before a special court-martial. (Id.) Neither Mr. Shepherd nor his legal counsel nor the members of the court-martial understood his mental state or its effects on his behaviors. (J. Shepherd Aff ) The special court-martial found him guilty and sentenced him to six months hard labor and forfeiture of pay. (AR ) However, the court-martial suspended the sentence, and Mr. Shepherd rejoined his Company. (AR 146.) The Army provided him with no psychiatric counseling and made no attempt to heal his psychological wounds. (AR 106; see J. Shepherd Aff ) Instead, his Commanding Officer again ordered him to head into the field. (AR 96.) And again, Mr. Shepherd s combat wounds his severe, undiagnosed PTSD prevented him from doing so. (AR 13, 96.) Only then, when Mr. Shepherd was clearly no longer able to fight, did the Army begin administrative procedures to discharge him. (AR 5, 144.) On August 4, 1969, Mr. Shepherd was given a discharge under Other Than Honorable conditions. (AR 141.) II. Mr. Shepherd Receives a Discharge Upgrade But Is Denied Benefits Mr. Shepherd returned from Vietnam a different man. (Affidavit of Stephen Shepherd dated November 9, 2011 (hereafter S. Shepherd Aff. ) 2-3.) He could no longer focus on the technical electronic work that he used to find so interesting. (AR 89.) He sometimes freaked out and lost complete control. (AR 90, 101.) He had trouble maintaining relationships with his family and friends. (Kraus Aff., Ex. A, VA Stress Disorder Examination at 2; S. Shepherd Aff. 10.) Even the sound of a pop-gun made him dive to the ground for cover. (J. Shepherd Aff. 28.) On his birthday, which is the Fourth of July, when he should enjoy himself and feel connected to his country, he feels neither. (Kraus Aff., Ex. A, VA Stress Disorder Examination at 2; J. Shepherd Aff. 32.) The fireworks trigger flashbacks to Vietnam. (Id.) Mr. Shepherd sought psychiatric help (AR 91, 101), but a PTSD diagnosis did not exist at that time. (AR 13; 6

12 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 12 of 46 Affidavit of Amy Monteiro Radivoy dated November 1, 2011 (hereafter Radivoy Aff. ) 7.) In 1972, Mr. Shepherd applied to the Army Discharge Review Board ( ADRB ) for a discharge upgrade. (AR ) At his August 10 hearing, he discussed the effects the war had on him and his confusion during the court-martial process that led to his discharge. (Id.) He stated that he didn t think that [he] was aware that [he] was waiving [his] rights. (AR 97.) Like many people at the time, he expressed doubt about the goals of the Vietnam War and questioned his role in it. (AR 96.) He tried to explain that his Commanding Officer... was killed in an operation and that the new Commanding Officer, who called him unfit to serve in his discharge report, didn t know [him] well enough to make that statement. (AR 100, 107.) Nonetheless, on September 5, 1972, the ADRB denied his application. (AR 80.) President Gerald Ford then extended clemency to soldiers who, for certain reasons, had received less than honorable discharges. Pursuant to the September 16, 1974 Proclamation, Mr. Shepherd received a Clemency Discharge. (AR 21, ) In March 1977, the Department of Defense ( DOD ), under orders from President Jimmy Carter, established the Special Discharge Review Program ( SDRP ) to provide a more streamlined discharge upgrade process for certain people with Vietnam-era, less than honorable discharges. On June 1, 1977, the SDRP granted Mr. Shepherd a discharge upgrade to General (Under Honorable Conditions). (AR ) With this upgraded discharge status, Mr. Shepherd was eligible for Veterans Administration benefits. (AR ) However, in October 1977, Congress passed a law requiring each service to affirm SDRP discharge upgrades in order for those veterans to receive compensation benefits. P.L In 1978, the ADRB declined to affirm Mr. Shepherd s discharge. (AR ) The Board noted that Mr. Shepherd received 2 SPCMs [Special Court Martials] during his 8 months in RVN [Republic of Vietnam]. (AR 53.) 7

13 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 13 of 46 It did not consider evidence of Mr. Shepherd s PTSD. (Id.) III. Mr. Shepherd Is Diagnosed with PTSD Caused by His Service in Vietnam Since his return, Mr. Shepherd has struggled to cope with the psychological damage he suffered in Vietnam. (AR 13; Kraus Aff., Ex. A, VA Stress Disorder Examination; J. Shepherd Aff ; S. Shepherd Aff. 5-8.) He felt totally alone and deeply ashamed of his discharge. He was estranged not only from his friends and family (J. Shepherd Aff. 30), but even from other veterans. He was occasionally invited to participate in veterans parades but always refused; he felt he was not welcome because of the shame of his discharge. (Id. 32.) Mr. Shepherd had difficulty holding down a job, and he battled with alcohol and substance abuse. (Id. 30; S. Shepherd Aff. 3, 11; Kraus Aff., Ex. A, VA Stress Disorder Examination; id., Ex. B, West Haven Medical Records Excerpt at 2-10; id., Ex. C, Perry Point Medical Records Excerpt at 3.) He experienced nightmares and flashbacks. (J. Shepherd Aff. 30; S. Shepherd Aff. 8; Kraus Aff., Ex. A, VA Stress Disorder Examination; id., Ex. C, Perry Point Medical Records Excerpt at 1-2.) He sometimes considered taking his own life. (J. Shepherd Aff. 30; S. Shepherd Aff. 5; Kraus Aff., Ex. B, West Haven Medical Records Excerpt, 2-7.) After the terrorist attacks of September 11, 2001, Mr. Shepherd s mental state worsened. (S. Shepherd Aff. 8.) While he was driving his truck, he would sometimes imagine that he saw his friends who died in Vietnam lying in the road. (Kraus Aff., Ex. A, VA Stress Disorder Examination at 2-3; J. Shepherd Aff. 33.) Mr. Shepherd had to stop driving trucks because he constantly th[ought]of Vietnam and... [could] not pay attention to driving, as well as he th[ought] he need[ed] to be safe. (Kraus Aff., Ex. A, VA Stress Disorder Examination at 2-3.) In 2003, he sought help at the New Haven Veterans Center and a licensed mental health counselor, Amy Monteiro Radivoy, diagnosed him with chronic, severe, and unremitting PTSD. 8

14 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 14 of 46 (AR 13.) She drew a direct connection from Mr. Shepherd s experiences in Vietnam to his PTSD; the psychological stress of warfare immobilized him, leading to his refusals to obey his commander s orders to head into combat. (Id.) Prior to this time, Mr. Shepherd had never heard of PTSD. (J. Shepherd Aff. 35.) After learning that he appeared to have PTSD, on August 20, 2003, Mr. Shepherd promptly applied to VA for service-connected healthcare, that is, treatment for injuries resulting from military service. (AR 36.) On July 22, 2004, Dr. Elbert Richardson, MD, administered a Stress Disorder Examination and diagnosed Mr. Shepherd with chronic PTSD. (AR 37; Kraus Aff., Ex. A, VA Stress Disorder Examination at 3.) VA reviewed Dr. Richardson s report, as well as Mr. Shepherd s treatment records from the New Haven Veterans Center and May 17, 2004 VA PTSD stressor questionnaire. On November 30, 2004, VA granted Mr. Shepherd s claim and approved his application for health care. (AR ) VA s letter stated that [t]he evidence from the Vet Center shows an assessment of post-traumatic stress disorder [and] [t]he VA Stress Disorder Examination shows a confirmed diagnosis of post-traumatic stress disorder, based on your combat-related stressors. (AR 37 (emphasis added).) IV. The Army Refuses To Credit Mr. Shepherd's Service, Sacrifice, and Diagnosis With the newly-discovered understanding of his disability and its effects on his behavior, on May 25, 2005, Mr. Shepherd applied pro se to the ABCMR, requesting an upgrade of his discharge to General (Under Honorable Conditions). (AR ) On April 18, 2006, the ABCMR denied his application, holding that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant s failure to timely file this application within the 3-year statute of limitations prescribed by the law. (AR 23.) The ABCMR overlooked evidence that Mr. Shepherd presented and omitted any analysis. (AR ) 9

15 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 15 of 46 On February 27, 2007, Mr. Shepherd, with the assistance of pro bono counsel, asked the ABCMR to reconsider its previous decision in light of new evidence he submitted, linking Mr. Shepherd s combat experiences and PTSD to his actions leading to unfavorable discharge. (AR ) The ABCMR denied the request for reconsideration, stating in its June 21, 2007 decision that the new evidence did not support a finding of error or injustice. (AR 1.) In reaching this conclusion, it misstated aspects of Mr. Shepherd s service, misunderstood his argument, failed to reconsider waiving the statute of limitations in the interest of justice, and did not review the merits of the first decision. (AR 1-7.) In the letter conveying its denial of his motion to reconsider, the ABCMR advised Mr. Shepherd that he had no further administrative remedies, and that his only recourse was to seek judicial review in this Court. (AR 1.) On April 21, 2011, Mr. Shepherd timely filed a complaint in this Court alleging that his applications to the ABCMR were within the three-year statute of limitations; that, alternatively, the ABCMR s refusals to waive the statute of limitations were arbitrary, capricious, and an abuse of discretion; and that he had demonstrated the injustice of his discharge status. ARGUMENT Mr. Shepherd s Other than Honorable discharge is an injustice. It fails to reflect the honor and sacrifice of his service, the connection between his PTSD and discharge, and his forty years of suffering. The ABCMR erred in concluding his application was time-barred, and it acted arbitrarily and capriciously in denying him a discharge upgrade on both his original pro se application and his request for reconsideration. Summary judgment for Mr. Shepherd is warranted. I. Standard of Review The ABCMR is empowered to correct any military record where sufficient evidence 10

16 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 16 of 46 establishes it is necessary to correct an error or remove an injustice. 10 U.S.C. 1552; 32 C.F.R When a person discovers [an] error or injustice in his record, he must apply to the ABCMR for a correction within three years of this discovery, or request that the ABCMR waive the three-year statute of limitations in the interest of justice. 10 U.S.C. 1552(b). The applicant must prove the error or injustice by a preponderance of the evidence. 32 C.F.R (e)(2). If the ABCMR denies an application, the applicant may file for reconsideration within one year, and the ABCMR will review any new evidence submitted to determine whether it is new and whether it is sufficient to show material error or injustice. Id (g)(4). The ABCMR s denial of an application is final. Id (g)(2)(i)(A). The Administrative Procedure Act ( APA ) provides that final agency action for which there is no other adequate remedy in a court [is] subject to judicial review. 5 U.S.C The court must examine whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Motor Vehicle Mfrs. Ass n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). After reviewing the whole record, the reviewing court may set aside an agency s decision where it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. 706(2)(a); see Blassingame v. Sec y of the Navy, 866 F.2d 556, 559 (2d Cir. 1989) (in discharge upgrade case, vacating district court order granting summary judgment to Navy as arbitrary and capricious). Agencies have an obligation to publish a statement of reasons that will be sufficiently detailed to permit judicial review. Nat'l Nutritional Foods Ass n v. Weinberger, 512 F.2d 688, 701 (2d Cir. 1975) (citations omitted). [E]ven under the arbitrary, capricious standard agency action will not be upheld where inadequacy of explanation frustrates review. Id. Under the APA, a court may review the ABCMR s decision not to waive the statute of 11

17 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 17 of 46 limitations in the interest of justice. See Boruski v. U.S. Gov t, 493 F.2d 301, 304 (2d Cir. 1974) (reviewing Air Force BCMR decision not to waive three-year statute of limitations); see also Evans v. Marsh, 835 F.2d 609 (5th Cir. 1988); Guerrero v. Stone, 970 F.2d 626 (9th Cir. 1992); Dickson v. Sec y of Defense, 68 F.3d 1396, 1404 (D.C. Cir. 1995). As a remedy for an arbitrary and capricious denial, a court may set aside the final decision of the ABCMR and order that a veteran be given a discharge upgrade. 5 U.S.C. 706(2)(a). As an alternative, the court may remand for additional investigation or explanation where (i) the record before the agency does not support the agency action, (ii) the agency has not considered all relevant factors, or (iii) the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it. Florida Power & Light Co. v. Lorion, 470 U.S. 729, (1985). Summary judgment is appropriate where there is no genuine dispute as to any material fact and where the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The substantive law applicable to the case is used to determine which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All of the evidence in the record, not just isolated facts, must be considered. In re Dana Corp., 574 F.3d 129, 152 (2d Cir. 2009). II. The ABCMR s April 24, 2006 Decision Was Arbitrary and Capricious, and Mr. Shepherd s Application Should Be Granted on Grounds of Justice and Equity Mr. Shepherd service, sacrifice, and decades of suffering from his undiagnosed war wounds merit correction of the injustice of his discharge status. Mr. Shepherd is now sixty-four years old, severely disabled, and unable to support himself. He has earned the VA disability benefits that his discharge status prevent him from receiving, so that in his final years he need not sleep in his truck. 1 If the ABCMR did deny his application on the merits, as the government 1 If upgraded, Mr. Shepherd would be entitled to up to $2,673 per month. 38 C.F.R. 321; Veterans Benefits... 12

18 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 18 of 46 contends (Govt. Br. at 13, 17), that decision was arbitrary and capricious. However, it appears that the ABCMR performed only a cursory review of the merits of Mr. Shepherd s application in order to make its determination not to waive the three-year statute of limitations in the interest of justice. The Board failed to recognize that Mr. Shepherd s application was timely filed within three years of discovering the injustice in his military record and, even if this were not the case, Mr. Shepherd merits a waiver in the interest of justice. A. The Record Shows That Mr. Shepherd s Application Should Be Granted Mr. Shepherd s application for a discharge upgrade to General (Under Honorable Conditions) should be granted because his discharge is unjust as it stands. 10 U.S.C The ABCMR s decisions to deny Mr. Shepherd s discharge upgrade were arbitrary, capricious, and an abuse of discretion because the Board failed to consider the injustice of Mr. Shepherd s discharge in light of his service-connected PTSD. First, had there been an understanding of PTSD in 1969 and had the Army s current policies and procedures relating to PTSD been in place, Mr. Shepherd would have received different treatment. Second, Mr. Shepherd has lived his adult life suffering from the trauma of combat and, with the clarity of diagnosis and proper care, has started moving forward at last. Therefore, in order to remove the injustice of Mr. Shepherd s discharge, this Court should grant Mr. Shepherd s application. Initially, [t]he requirement that agency action not be arbitrary and capricious includes a requirement that the agency adequately explain its result, Public Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993), and the Board s 2006 decision utterly fails to do so. The Board completely ignores the evidence of Mr. Shepherd s PTSD and fails to make a rational connection between the facts found and the choice made. Motor Vehicle Mfrs. Ass n v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43. The Board stated facts and conclusions but did not Administration Manual M21-1, Appx. B, Section IX, available at 13

19 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 19 of 46 connect them. It noted that Mr. Shepherd submitted several character reference letters attesting to his being a good citizen, of his service to the community and his church, and of his being a trustworthy and honorable man as well as a copy of his Department of Veterans Affairs (VA) rating decision which show his entitlement for medical care for post-traumatic stress disorder. (AR 22.) The decision then does not go on to evaluate the letters or discuss the diagnosis. Without explaining the basis of its decision, the Board concludes that the evidence presented does not demonstrate the existence of a probable error or injustice. (AR 23.) The administrative record clearly demonstrates that Mr. Shepherd has PTSD and that it was caused by his combat experiences. (AR 13, ) Both a VA licensed mental health counselor and Dr. Richardson of the VA diagnosed him with PTSD. (Id.) There is no contrary evidence in the record, nor could there be. These diagnoses causally linked Mr. Shepherd s combat experiences in Vietnam with his mental health issues. (Id.) Even prior to any diagnosis, the record shows that Mr. Shepherd was changed by the war and exhibited signs of trauma while still in Vietnam. Mr. Shepherd went from polite, cooperative, and respectful, before the war (AR ) to being a person who lost complete control and freaked out. (AR 90, 101.) When he completed training at Fort Gordon, his Commanding Officer called him an outstanding soldier (AR 115); after experiencing intense combat and seeing his friends killed, his new Commanding Officer described him as unfit to serve. (AR 107.) Additionally, evidence in the record suggests that Mr. Shepherd s discharge was based on his two refusals to secure his gear and head into the field after he had braved intense combat and developed PTSD. (AR 20, 31.) He was discharged for unfitness due to an established pattern of shirking after disobeying lawful orders on two occasions to secure his gear and report to the fire support base. (AR 5.) These two refusals are the pattern. 14

20 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 20 of 46 Moreover, having a court-martial conviction was not incompatible with honorable service. 2 A month after Mr. Shepherd s first court-martial, his Commanding Officer called him an outstanding soldier (AR 115), and soon after his Article 15, he received the Combat Infantryman s Badge. The sentences of confinement in each of Mr. Shepherd s prior courtmartials were suspended (AR 106), reflecting that the Army did not consider them serious. The May 1969 special court-martial s statement that no previous convictions were considered in making its determination (AR 146) further establishes that the two previous violations were minor. Only when Mr. Shepherd twice refused to go into battle was he deemed unfit to serve; only then did the Army begin discharge procedures. In 2003, a licensed mental health counselor at the New Haven Veterans Center concluded that Mr. Shepherd s refusals were symptomatic of his combat trauma the psychological stress of warfare had immobilized him. (AR 13.) The Army would not have sent a soldier who suffered a physical injury back into battle. But because Mr. Shepherd s wound was psychological not only invisible to the naked eye but an unknown illness at the time he was considered unfit and discharged with an unfavorable status. Moreover, Mr. Shepherd s discharge is unjust because had the Army s current policies been in place in 1969, the Army would have recognized his PTSD and discharged him differently. In the analogous context of the Discharge Review Board ( DRB ), 3 regulations 2 Five-star Fleet Admiral Chester Nimitz and Civil War General Winfield Scott were both convicted by courtmartial. See E.B. Potter, Nimitz 61 (1988); Timothy D. Johnson, Winfield Scott: The Quest for Military Glory 17 (1998). Additionally, Sergeant Alvin York, the most decorated American veteran of World War I, initially doubted the war and wrote on his draft registration form, Don t Want to Fight. David D. Lee, Sergeant York: An American Hero 17 (2002). York had a very difficult time adjusting to his training at Fort Gordon and his Commanding Officer granted him a ten-day leave from his training to go home and collect his thoughts. Id. at Both the DRB and the BCMR have the authority to change a service member s discharge. 10 U.S.C. 1552(a)(1), 1553(b). The BCMR has the authority to correct any military record, including an unjust discharge, while the DRB may only correct a discharge or dismissal. Id. A service member must apply to the DRB within 15 years after the date of the discharge or dismissal, while the BCMR has a three-year statue of limitations, which may be waived in the interest of justice. 10 U.S.C. 1552(b); id. 1553(a). 15

21 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 21 of 46 provide that equitable grounds for a discharge upgrade exist where the policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable, these policies represent a substantial enhancement of rights, and [t]here is substantial doubt that the applicant would have received the same discharge if relevant current policies and procedures had been available to the applicant at the time of the discharge proceedings under consideration. 32 C.F.R. 70.9(c). The Army now treats soldiers with PTSD substantially better than in Prior to administrative separation, if (i) a soldier is receiving a less than Honorable discharge and (ii) has a PTSD diagnosis, or reasonably alleges the influence of PTSD based on recent combat experience, DOD requires that he receive a medical examination to assess whether the effects of post-traumatic stress disorder... constitute matters in extenuation that relate to the basis for administrative separation.... (Kraus Aff., Ex. D, DOD Instruction at 2-3.) Mr. Shepherd exhibited symptoms of PTSD when he refused to go into the field, including [i]ntense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event and [e]fforts to avoid activities, places, or people that arouse recollections of the trauma. Am. Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders at (4th ed. 2000). However, the DSM in 1969 did not identify PTSD as a diagnosis. Cf. Am. Psychiatric Ass n, Diagnostic and Statistical Manual (2d ed. 1968). Thus, the Army was not able to recognize those symptoms. Under current policies, Mr. Shepherd would have been able to reasonably allege[] the influence of PTSD (Kraus Aff., Ex. D, DODI at 3), and been entitled to a medical examination specifically evaluating whether PTSD related to his discharge. Laudably, Army leadership is taking aggressive, far-reaching steps to ensure an array of 16

22 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 22 of 46 behavioral health services are available to Soldiers and their Families to help those dealing with PTSD and other psychological effects of war. (Kraus Aff., Ex. E, U.S. Army, Psychological Health Care Fact Sheet (2010) at 1.) For example, under the 250-page DOD and VA 2010 Clinical Practice Guideline for the Management of Post-Traumatic Stress, Mr. Shepherd would have received PTSD screenings by medical professionals before, during, and after service. (Kraus Aff., Ex. F.) These would have uncovered in him the symptoms of chronic PTSD: persistently re-experiencing the traumatic event; feeling estranged from others; difficulty concentrating; outbursts of anger; and a sense of foreshortened future. (Id. at 2-3; see also Kraus Aff., Ex. G, Gen. Richard A. Cody, Vice Chief of Staff of the U.S. Army, Memorandum, Post Deployment Health Reassessment (June 18, 2007).) The ADRB has also improved its procedures on PTSD since Mr. Shepherd applied for a discharge upgrade in At that time, there was no provision that the ADRB include a member who is a physician, clinical psychologist, or psychiatrist where an applicant has been diagnosed as experiencing post-traumatic stress disorder... as a consequence of [] deployment to a combat zone. 10 U.S.C.A (West). A greater understanding now of PTSD and its effects on behavior counsels in favor of reevaluating Mr. Shepherd s actions and the Army s discharge, as a matter of justice. Since Vietnam, Mr. Shepherd s life has been devastated by chronic and severe PTSD. (AR 35.) This illness went undiagnosed and untreated until 2003, and Mr. Shepherd did not receive VA healthcare benefits for his service-connected PTSD until (AR 11, 13, ) Without this support, Mr. Shepherd has been fighting his battle alone. Had Mr. Shepherd died on the mission that simultaneously earned him a Bronze Star and left him 100% disabled, the Army would have buried him with honor and pride in Arlington National Cemetery. 38 U.S.C

23 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 23 of 46 Instead he survived, and returned home to life as an outcast. The ABCMR s decision was arbitrary, capricious, and an abuse of discretion because it failed to consider that under current policies, Mr. Shepherd would not have received an Other than Honorable discharge, and that Mr. Shepherd has been suffering from his service injury for decades. As a matter of justice, therefore, Mr. Shepherd s application should be granted. B. The Court May Consider Evidence Outside the Record That Confirms Mr. Shepherd s Application Should Be Granted In the narrow circumstances of this case, the Court may consider evidence outside the formal record, specifically Mr. Shepherd s medical records, affidavits of a VA mental health counselor, of Mr. Shepherd, of Mr. Shepherd s brother, and of his Commanding Officer at Fort Gordon, and an article by the Associated Press. Review under the APA is generally restricted to the administrative record the record rule but courts have recognized that, in limited cases, it is appropriate to look beyond the record compiled by the agency. Courts cannot intelligently perform their reviewing function if an administrative record is inadequate, incomplete or [] inconsistent. Sierra Club v. U.S. Army Corps of Engineers, 772 F.2d 1043, 1052 (2d Cir. 1985); see also National Audubon Society v. Hoffman, 132 F.3d 7, 15 (2d Cir ) (stating that the court will consider additional information obtained from the parties through affidavits... when the administrative record is so inadequate as to prevent the reviewing court from effectively determining whether the agency considered all [] consequences of its proposed action ). In order for the inquiry to be plenary, careful and searching, Blassingame, 866 F.2d at 559, reviewing courts will look beyond the administrative record. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971). One indication that the record here is incomplete is that it omits part of Shepherd s original application to the ABCMR. As supporting evidence, Mr. Shepherd submitted character 18

24 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 24 of 46 references and newspaper articles to help in making [a] decision. (AR 28.) Yet, no newspaper clippings are included in the administrative record filed with the Court. (See AR, ECF No. 16.) While the decision briefly acknowledges the character references, the ABCMR made no mention of the newspaper articles in its decision (AR 22) and failed to provide them to the Court in the certified administrative record. This incomplete record hampers the Court s ability to assess the agency s decisions and militates in favor of examining additional evidence to fill in the gaps. Further, the record is inadequate because the ABCMR should have sought these medical records and supplementary affidavits from VA and Mr. Shepherd to adjudicate its first decision, as Mr. Shepherd was pro se. The court has a special obligation to ensure due process for pro se applicants, in part by helping them appropriately develop the record. See Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980) (finding that administrative law judge did not adequately protect the rights of [a] pro se litigant by ensuring that all of the relevant facts were sufficiently developed and considered ). Remand is appropriate when an agency fails adequately to help develop the record, id. at 897, and this failure also counsels in favor of considering on review records the ABCMR should have sought in the first place. 1. The Court May Consider Mr. Shepherd s VA Medical Records This Court may consider Mr. Shepherd s VA medical records for three reasons: (i) this case is analogous to military disability-retirement appeals, in which new evidence is admissible upon judicial review; (ii) VA medical records are themselves agency records, of which a court may take judicial notice if they are not included in the formal record; and (iii) the ABCMR should have sought to include them in the record. First, the Court of Federal Claims, in which citizens may sue the government for monetary redress, has traditionally permitted a reviewing court to consider new evidence in 19

25 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 25 of 46 military disability-retirement cases. Black v. United States, 24 Cl. Ct. 465 (1991). The character of the administrative process in military disability-retirement cases... strongly suggests the propriety of our established practice of accepting de novo evidence in this area. Brown v. United States, 184 Ct. Cl. 501, 511 (1968). 4 Such cases are comparable to Mr. Shepherd s. First, the ABCMR did not hold an adversarial hearing, leaving the record a miscellaneous collection of materials presented by the claimant and, to a much less extent, by the service. Brown, 184 Ct. Cl. at 512. Moreover, the ABCMR s determination does not reflect the medical testing and evaluation required to establish a disability. Black v. United States, 24 Cl. Ct. at 469. Because an adversarial process did not develop the record, particularly on Mr. Shepherd s original pro se application, and because Mr. Shepherd s claim is inherently medical, this Court should consider Mr. Shepherd s VA records. These records stand in for the medical testing and evaluation, id., that is critical to the proper adjudication of such medically-based cases. Here, Mr. Shepherd s VA records clearly evince the effects of PTSD: inability to maintain close relationships long-term; struggles with alcoholism and substance abuse; difficulty holding down a job; and occasional thoughts of suicide. (See generally Kraus Aff. Ex. A, VA Stress Disorder Examination; id., Ex. B, West Haven Medical Records Excerpt; id., Ex. C, Perry Point Medical Records Excerpt.) The VA records also demonstrate that Mr. Shepherd recognized the abnormality of his mental condition and repeatedly sought help from others. (Id.) Second, on judicial review of an agency decision, a court may take judicial notice of the agency's own records. Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010). In Dent, the Ninth 4 While a more recent Court of Federal Claims case, Walls v. United States, 582 F.3d 1358 (Fed. Cir. 2009), has cast doubt on the holding of Brown, Brown was not overruled. Moreover, the reasoning underlying the case that the long timeline of developing and diagnosing an illness warrants admitting new evidence is equally applicable in this case 20

26 Case 3:11-cv AWT Document 30-1 Filed 11/10/11 Page 26 of 46 Circuit, upon review of a deportation proceeding, considered naturalization records that had not been made a part of the formal administrative record before the Board of Immigration Appeals. The court reasoned that it was permissible to examine evidence not in the administrative record because [t]he law does not [] interpret this rule absurdly, so that injustice may be done. Id. Importantly, the Ninth Circuit held that it could consider records of one federal agency, the Department of Homeland Security (which possessed the naturalization record), on review of the administrative decision of a different federal agency, the Department of Justice (whose Board of Immigration Appeals affirmed the removal order). Id. Just as the Ninth Circuit did in Dent, this Court may consider records of one agency, the Department of Veterans Affairs, on review of the administrative decision of a different federal agency, the Department of the Army. Here, the VA hospitals and ABCMR are run by separate federal agencies, yet the connection between them is analogous to DHS s U.S. Citizenship and Immigration Services and DOJ s Board of Immigration Appeals. The ABCMR may seek records from VA that would assist in adjudicating a veteran s claim. 32 C.F.R (c)(2)(iii). That ABCMR regulations insist that original records of the soldier or former soldier obtained from the Department of Veterans Affairs be returned to VA, 32 C.F.R (b)(5), demonstrates the shared records policy and open communication between the two departments. The Court may therefore take judicial notice of Mr. Shepherd s VA medical records. Third, the Board should have sought to include Mr. Shepherd s post-service medical records into the administrative record, in order to verify his argument that his PTSD diagnosis and decades of suffering warrant an upgrade. The ABCMR had the ability to request these records either from Mr. Shepherd or VA but it neglected to do so. The director of an Army records holding agency will... [r]equest additional information from the applicant, if needed, to 21